Escobedo v. Lund, No. C 10–4111–MWB.

CourtUnited States District Courts. 8th Circuit. Northern District of Iowa
Writing for the CourtMARK W. BENNETT
Citation948 F.Supp.2d 951
Decision Date03 June 2013
Docket NumberNo. C 10–4111–MWB.
PartiesGuillermo ESCOBEDO, Petitioner, v. Mark LUND, Respondent.

948 F.Supp.2d 951

Guillermo ESCOBEDO, Petitioner,
v.
Mark LUND, Respondent.

No. C 10–4111–MWB.

United States District Court,
N.D. Iowa,
Western Division.

June 3, 2013.


[948 F.Supp.2d 957]


Rockne Cole, Iowa City, IA, for Petitioner.

Richard J. Bennett, Iowa Attorney General, Des Moines, IA, for Respondent.


MEMORANDUM OPINION AND ORDER REGARDING OBJECTIONS TO MAGISTRATE JUDGE'S RECOMMENDED DISPOSITION OF STATE PRISONER'S HABEAS PETITION

MARK W. BENNETT, District Judge.
TABLE OF CONTENTS

I.

INTRODUCTION

959
A.

Factual Background

959
B.

Procedural Background

960
1.

State proceedings

960
a.

Conviction and direct appeal

960
b.

Post–conviction relief proceedings

962
i.

The district court's decision

962
ii.

The appellate court's decision

964
2.

Federal Proceedings

965
a.

Escobedo's § 2254 Petitions

965
b.

The Report And Recommendation

966
c.

Objections to the recommended disposition

968


II.

LEGAL ANALYSIS

968
A.

Review Of A Report And Recommendation

968
1.

The applicable standards

968
2.

De novo review

969
3.

“Clear error” review

969
B.

Federal Habeas Relief

970
1.

“Exhausted” and “adjudicated” claims

971
a.

The “exhaustion” and “adjudication” requirements

971
b.

Limitations on relief on “exhausted” claims

972
2.

The § 2254(d)(1) standards

973
a.

The “contrary to” clause

974
b.

The “unreasonable application” clause

974
c.

The effect of § 2254(d)(1) deficiencies in the state court decision

975
3.

The § 2254(d)(2) standard

976
4.

De novo review of issues not reached by the state court

976
C.

“Clearly Established Federal Law” For “Ineffective Assistance” Claims

976
1.

The Strickland standard

977
2.

Strickland's “deficient performance” prong

978
3.

Strickland's “prejudice” prong

979
D.

Escobedo's Objections To The “Deficient Performance” Analysis

979
1.

The state court's rationale

980
2.

Escobedo's first objection: unreasonable factual determinations

980
3.

Escobedo's second objection: mistaking a legal determination for a factual finding

982
4.

Escobedo's third objection: unreasonable application of
Strickland

983
a.

Escobedo's argument

983
b.

Application of the “deficient performance” standards

984
E.

Escobedo's Objection To The “Prejudice” Analysis

991
1.

The state court's rationale

991
2.

Escobedo's argument

992
3.

Analysis

992
a.

Context–specific determination of “prejudice”

992
b.

Failure to apply the principle in a new context

994
c.

De novo consideration

995
F.

Appropriate Relief

996


III.

CONCLUSION

996

[948 F.Supp.2d 958]

In this action for federal habeas relief pursuant to 28 U.S.C. § 2254, a state prisoner, petitioner Guillermo Escobedo, challenges his state conviction in 1995 for first-degree murder in the stabbing death of another young man at a party. As the United States Supreme Court explained more than four decades ago, “There is no higher duty of a court, under our constitutional system, than the careful processing and adjudication of petitions for writs of habeas corpus, for it is in such proceedings that a person in custody charges that error, neglect, or evil purpose has resulted in his unlawful confinement and that he is deprived of his freedom contrary to law.” 1 Indeed, the “Great Writ” is the only common-law writ explicitly protected by the United States Constitution.2 At the same time, “the writ of habeas corpus has historically been regarded as an extraordinary remedy,” 3 and I have treated it that way in my own habeas cases involving either state or federal prisoners in almost 19 years as a United States district court judge.4 In 178 cases by federal prisoners

[948 F.Supp.2d 959]

seeking habeas relief pursuant to § 2255, I have granted relief in only 5.5 In cases by state prisoners seeking habeas relief pursuant to § 2254, I have been even more restrained: In 297 such cases, I have so far granted habeas relief in only 3.6

Here, Escobedo contends that his trial counsel provided ineffective assistance by failing to demand an “automatic” mistrial when the trial judge removed a juror after deliberations had started and, instead, acquiescing in replacement of the juror with an alternate. A magistrate judge recommended that Escobedo's § 2254 petition be denied, because Escobedo had failed to demonstrate that the state appellate court unreasonably denied his claim for post-conviction relief based on ineffective assistance of counsel. In his objections to the magistrate judge's recommendation, Escobedo challenges the magistrate judge's failure to find that the state appellate court reached unreasonable conclusions as to both the “deficient performance” and the “prejudice” prongs of his constitutional claim. These objections have triggered my de novo review of parts of the report and recommendation.

I. INTRODUCTION
A. Factual Background

Absent rebuttal by clear and convincing evidence, I must presume that any factual

[948 F.Supp.2d 960]

determinations made by a state court in a state prisoner's criminal and postconviction relief cases were correct. 28 U.S.C. § 2254(e)(1); see Bell v. Norris, 586 F.3d 624, 630 (8th Cir.2009) (a federal court must deem factual findings by the state court to be presumptively correct, subject to disturbance only if proven to be incorrect by clear and convincing evidence). Furthermore, to determine whether or not any challenged factual findings are unreasonable, I must know what those factual findings were. Therefore, I begin with some of the findings of fact by the Iowa Court of Appeals concerning the circumstances leading to petitioner Guillermo Escobedo's conviction.

On Escobedo's direct appeal of his conviction, the Iowa Court of Appeals summarized the facts leading to his conviction, as follows:

The State presented evidence Escobedo and co-defendant Cesar Herrarte stabbed two young men with meat-packing knives after a fight broke out at a party on January 14, 1995. The party took place at a house in Hawarden, Iowa, and was attended by a number of young people. One of the teenage stabbing victims died a short time later. His wounds were so deep and severe that numerous vital organs and arteries in the chest and stomach area were cut or severed and some of his abdominal contents were expelled from his body.

State v. Escobedo, 573 N.W.2d 271, 274–75 (Iowa Ct.App.1997).


B. Procedural Background
1. State proceedings
a. Conviction and direct appeal

Escobedo (and co-defendant Herrarte) were tried before a jury in the Iowa District Court for Sioux County. As the Iowa Court of Appeals explained in its decision on Escobedo's direct appeal of his conviction, Escobedo's first concern was his ability to get a fair trial in Sioux County:

Escobedo moved for a change of venue from Sioux County based on the small, rural nature of the jurisdiction, extensive media coverage, general public knowledge of the incident, his nationality and immigration status, and the lapse of time between the incident and the trial.

Escobedo, 573 N.W.2d at 275. The court explained in a footnote,


The population of Sioux County in 1990 was 29,903. The county is served by several newspapers, including the Sioux City Journal which reaches an average of 4152 of the 10,300 households in Sioux County each day. The incident was covered extensively in all area news sources, especially in the local newspaper in Hawarden. The coverage included editorials and numerous letters to the editor. Escobedo was from Mexico and employed at a lamb kill plant in Hawarden. One letter was critical of “all the trouble that has happened in our community since Iowa Lamb Co. hired ... illegal aliens.” The population of Hawarden in 1990 was 2439.

Escobedo, 573 N.W.2d at 275 n. 1. The trial court denied Escobedo's motion for change of venue. Id. at 275.


The Iowa Court of Appeals then recounted the circumstances leading to replacement of one of the trial jurors with an alternate after deliberations had begun, as follows:

The case proceeded to trial with jury selection commencing September 6, 1995. The jury was impaneled on September 8. Three alternate jurors were selected. Prospective jurors were examined by the court as well as the attorneys.

The evidence in the case was presented to the jury over the course of the following two weeks. The trial court

[948 F.Supp.2d 961]

then gave its instructions to the jury and closing arguments were presented by the attorneys. The alternate jurors were subsequently excused but told by the trial judge not to discuss the case until a verdict had been returned. The jury then retired to begin its deliberations shortly after 3 p.m. on September 21. They deliberated into the evening and were excused around 10 p.m. with instructions to return at 9 a.m. the next morning to resume their deliberations.

The next morning, the county attorney informed the trial judge he recently received information from a person who reported hearing a juror make racial remarks about Escobedo at a bar a few nights earlier. The trial judge conducted an inquiry into the report, which included testimony from the juror and the informant, and dismissed the juror from the case. He then told Escobedo's lawyer he “intended to use” the dismissed first alternate juror, and Escobedo's lawyer responded “yes.” The alternate juror was summoned and replaced the dismissed juror. Deliberations resumed after the trial judge instructed the jury to begin their deliberations anew. The jury returned its verdict later in the day [September 22, 1995].

Escobedo, 573 N.W.2d at 275. Specifically, on the jury's verdict, “Escobedo was convicted of first-degree murder, willful injury, and assault.” Id. at 274.


On direct appeal, Escobedo challenged the district court's denial of his motion for change of venue, based on unfavorable publicity indicating racial prejudice in the community and the demonstrated ineffectiveness of voir dire to eliminate such racial prejudice, in light of the incident requiring replacement of the trial juror. Id. at 276. The Iowa Court of Appeals rejected those arguments:

We fail to find presumed prejudice from our review of the record. Most of the media reports were factual in nature and restricted to the first two months following...

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4 practice notes
  • Velazquez-Ramirez v. Fayram, No. C12-4065-MWB
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • February 7, 2014
    ...is defective." Id. at 369. I discussed, in detail, the issue of context-specific determinations of prejudice in Escobedo v. Lund, 948 F. Supp.2d 951, 992-994 (N.D. Iowa 2013). As I explained:[I]t is a well-established principle of Supreme Court law that the "probability of a different outco......
  • State v. Garcia, No. 15-1543
    • United States
    • United States State Supreme Court of Iowa
    • November 17, 2017
    ...because their responses "indicated they could set their preconceived ideas aside"). The court of appeals also cited Escobedo v. Lund, 948 F.Supp.2d 951, 990 n.15 (N.D. Iowa 2013) (observing, based on nearly nineteen years judicial experience, that "anti-Hispanic bias" is a common problem am......
  • State v. Garcia, No. 15-1543
    • United States
    • Court of Appeals of Iowa
    • November 9, 2016
    ...9 and 11 admitted bias against individuals who do not speak English and live in the United States."); see also Escobedo v. Lund, 948 F. Supp. 2d 951, 990 n.15 (N.D. Iowa 2013) (recounting observations by an experienced federal district court judge that "anti-Hispanic bias" is a common probl......
  • Escobedo v. State, No. 17-0564
    • United States
    • Court of Appeals of Iowa
    • April 18, 2018
    ...Escobedo then filed another petition for habeas corpus in 2010, which the federal district court granted. See Escobedo v. Lund , 948 F. Supp. 2d 951, 960 (N.D. Iowa 2013), rev'd in part , 760 F.3d 863 (8th Cir. 2014). The Eighth Circuit Court of Appeals reversed the grant of habeas corpus. ......
4 cases
  • Velazquez-Ramirez v. Fayram, No. C12-4065-MWB
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • February 7, 2014
    ...is defective." Id. at 369. I discussed, in detail, the issue of context-specific determinations of prejudice in Escobedo v. Lund, 948 F. Supp.2d 951, 992-994 (N.D. Iowa 2013). As I explained:[I]t is a well-established principle of Supreme Court law that the "probability of a different outco......
  • State v. Garcia, No. 15-1543
    • United States
    • United States State Supreme Court of Iowa
    • November 17, 2017
    ...because their responses "indicated they could set their preconceived ideas aside"). The court of appeals also cited Escobedo v. Lund, 948 F.Supp.2d 951, 990 n.15 (N.D. Iowa 2013) (observing, based on nearly nineteen years judicial experience, that "anti-Hispanic bias" is a common problem am......
  • State v. Garcia, No. 15-1543
    • United States
    • Court of Appeals of Iowa
    • November 9, 2016
    ...9 and 11 admitted bias against individuals who do not speak English and live in the United States."); see also Escobedo v. Lund, 948 F. Supp. 2d 951, 990 n.15 (N.D. Iowa 2013) (recounting observations by an experienced federal district court judge that "anti-Hispanic bias" is a common probl......
  • Escobedo v. State, No. 17-0564
    • United States
    • Court of Appeals of Iowa
    • April 18, 2018
    ...Escobedo then filed another petition for habeas corpus in 2010, which the federal district court granted. See Escobedo v. Lund , 948 F. Supp. 2d 951, 960 (N.D. Iowa 2013), rev'd in part , 760 F.3d 863 (8th Cir. 2014). The Eighth Circuit Court of Appeals reversed the grant of habeas corpus. ......

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